Leo
M. Frank filed his motion in writing, which was afterwards amended, to
set aside the verdict of guilty of murder rendered against him in the
superior court of Fulton county. To this motion the state of Georgia
interposed its demurrer, both general and special. On the hearing of
the demurrer, and at the conclusion thereof, judgment was rendered by
the court on June 6, 1914, sustaining the demurrer upon each and every
ground, and dismissing the motion. To this judgment Leo M. Frank
excepts, and assigns the same as error. From the motion it appears that
the verdict of guilty of murder was received by the court on August 25,
1913, and it was sought to be set aside for the following reasons:

At
the time the verdict was received, and the jury trying the case was
discharged, the defendant was in the custody of the law and
incarcerated in the common jail of the county. He was not present when
the verdict was received and the jury discharged, as he had the right
in law to be, and as the law required he should be. He did not waive
the right to be present, nor did he authorize any one to waive it for
him, nor consent that he should not be present. He did not know that
the verdict had been rendered and the jury discharged until after the
reception of the verdict and the discharge of the jury, and did not
know of any waiver of his presence made by his counsel until after
sentence of death had been pronounced upon him. On the day the verdict
was rendered, and shortly before the judge who presided at the trial of
the cause began his charge to the jury, the judge, in the jury room of
the courthouse wherein the trial was proceeding, privately conversed
with two of the counsel of the defendant, and in the conversation
referred to the probable danger of violence that the defendant would be
in if he were present when the verdict was rendered, if the verdict
should be one of acquittal; and after the judge has thus expressed
himself he requested the counsel, thus spoken to, to agree that the
defendant need not be present at the time the verdict was rendered and
the jury was polled. In these circumstances the counsel did agree with
the judge that the defendant should not be present at the rendition of
the verdict. In the same conversation the judge expressed the opinion
also to the counsel that even counsel of the defendant might be in
danger if they should be present at the reception of the verdict. In
these circumstances defendant's counsel, Rosser and Arnold, did agree
with the judge that defendant should not be present at the rendition of
the verdict. The defendant was not present at the conversation, and
knew nothing about any agreement made, as above stated, until after the
verdict was received and the jury was discharged, and until after
sentence of death was pronounced upon him. Pursuant to the conversation
above stated, neither of defendant's counsel were present when the
verdict was received and the jury discharged; nor was the defendant
present when the verdict was rendered and the jury discharged.
Defendant says that he did not give counsel, nor any one else, any
authority to waive or renounce the right of the defendant to be present
at the reception of the verdict, or to agree that the defendant should
not be present thereat; that the relation of client and attorney did
not give them such authority, though counsel acted in the most perfect
good faith and in the interest of the personal safety of the defendant.
Defendant did not agree that his counsel, or either of them, might be
absent when the verdict was rendered.

Defendant
says, upon and because of each of the grounds above stated: The verdict
was of no legal effect and was void, and in violation of article 1,
§
1, par. 3, of the Constitution of the state of Georgia, which
provides
that
“no person shall be deprived of life, liberty, or property, except by
due process of law.” That the reception of the verdict in the
“involuntary absence of the defendant” was in violation of and contrary
to the provisions of article 6, § 18, par. 1, of the Constitution
of
the state of Georgia, which provides that “the right of trial by jury,
except where it is otherwise provided in this Constitution, shall
remain inviolate.” That the reception of the verdict in the absence of
the defendant was contrary to and in violation of the provisions of the
fourteenth amendment to the Constitution of the United States, to wit:
“Nor shall any state deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.” That the reception of
the verdict in the absence of the defendant was in violation of article
1, § 1, par. 5, of the Constitution of the state of Georgia, to
wit:
“Every person charged with an offense against the laws of this state
shall have the privilege and benefit of counsel.” Because the trial
judge (Hon. L. S. Roan), upon considering “the motion for a new trial
made by this defendant, after the reception of said verdict as above
stated, rendered his judgment denying said motion and in rendering said
judgment stated that the jury had found the defendant guilty, that he,
the said judge, had thought about the cause more than any other he had
ever tried, that he was not certain of the defendant's guilt, that with
all the thought he had put on this case he was not thoroughly convinced
that Frank was guilty or innocent, but that he did not have to be
convinced, that the jury was convinced, that there was no room to doubt
that, and that he felt it his duty to order that the motion for a new
trial be overruled.” That the judge, in denying to the defendant a new
trial in the case, did not, as shown by his statement, give to the
defendant the judicial determination of the motion to which the
defendant was entitled by law. That the judge, being constituted by law
as one of the triors, did not afford to the defendant the protection
which the law guarantees, nor the due process of law.

It
was alleged that the defendant was denied the due process of law, and
the equal protection of the laws, because the courtroom wherein his
trial was had had a number of windows on the Pryor street side, looking
out on the public street of Atlanta, and furnishing easy access to any
noises that might occur upon the street; that there is an open alleyway
running from Pryor street on the side of the courthouse, and there are
windows looking out from the courtroom into this alley, and that crowds
collected therein, and any noises in this alley could be heard in the
courtroom; that these crowds were boisterous, and that on the last day
of the trial, after the case had been submitted to the jury, a large
and boisterous crowd of several hundred people were standing in the
street in front of the courthouse, and as the solicitor general came
out greeted him with loud and boisterous applause, taking him upon
their shoulders and carrying him across the street into a building
wherein his office was located; that this crowd did not wholly disperse
during the interval between the giving of the case to the jury and the
time when the jury reached its verdict; that several times during the
trial the crowd in the courtroom, and outside of the courtroom, which
was audible both to the court and the jury, would applaud when the
state scored a point; a large crowd of people standing on the outside,
cheering, shouting, and hurrahing, and the crowd in the courtroom
signifying their feelings by applause and other demonstrations, and on
the trial, and in the presence of the jury, the trial judge in open
court conferred with the chief of police of the city of Atlanta and the
colonel of the Fifth Georgia Regiment stationed in Atlanta, which had
the natural effect of intimidating the jury, and so influencing them as
to make impossible a fair and impartial consideration of defendant's
case. Indeed, such demonstrations finally actuated the court in making
the request of defendant's counsel, Messrs. Rosser and Arnold, to have
the defendant and counsel themselves to be absent at the time the
verdict was received in open court, because the judge apprehended
violence to the defendant and his counsel; and the apprehension of such
violence naturally saturated the minds of the jury, so as to deprive
the defendant of a fair and impartial consideration of his case, which
the Constitution of the United States, in the fourteenth amendment
hereinbefore referred to, entitled him to.

On
Saturday, August 23, 1913, previous to the rendition of the verdict on
August 25th, the entire public press of Atlanta appealed to the trial
court to adjourn court from Saturday to Monday, owing to the great
public excitement, and the court adjourned from Saturday, 12 o'clock
m., to Monday morning, because it felt it unwise to continue the case
that day, owing to the great public excitement, and on Monday morning
the public excitement had not subsided, and was as intense as it was on
Saturday previous. When it was announced that the jury had reached a
verdict, the trial judge went to the courtroom and found it crowded
with spectators, and, fearing violence in the courtroom, the trial
judge cleared it of spectators, and the jury was brought in for the
purpose of delivering their verdict. When the verdict of guilty was
announced, a signal was given to the crowd on the outside to that
effect. The large crowd of people standing on the outside cheered and
shouted as the jury was beginning to be polled, and before more than
one juror had been polled the noise was so loud and the confusion so
great that the further polling of the jury had to be stopped, so as
to restore order, and so great was the noise and confusion and cheering
and confusion from without that it was difficult for the court to hear
the responses of the jurors as they were being polled, though the court
was only ten feet distant from the jury. All of this occurred during
the involuntary absence of the defendant, he being at the time confined
in jail as above set forth. Wherefore, etc.

The
state of Georgia, responding to the motion to set aside the verdict,
said by way of demurrer that the motion should be dismissed for the
following reasons: (1) Because a motion to set aside a verdict or
judgment of the court should be, under the law, predicated upon some
defect appearing on the face of the pleadings or record, and the motion
filed is not one predicated upon any defect appearing of the face of
the pleadings or the record. (2) Because it affirmatively appears from
the motion that the defendant, Leo M. Frank, made a motion for a new
trial, which was denied by the court, and as a matter of law, if the
verdict was rendered at a time when the defendant was not present in
court, such irregularity should have been included among the grounds of
the motion for a new trial, and as a matter of law is conclusively
presumed to have been incorporated and embodied in the motion for new
trial, which motion was heard and denied, as shown by the petition. (3)
Because the motion shows a course of conduct on the part of the
defendant which amounts to an estoppel, and that the motion and the
record of the decision of the case of Leo M. Frank v. State, rendered
by the Supreme Court of Georgia, affirmatively shows a course of
conduct that amounts to and constitutes an estoppel. (4) Because the
motion affirmatively discloses that counsel for the defendant agreed
with the court that the defendant should not be present at the
rendition of the verdict; that this agreement on the part of counsel
was and is binding on the defendant, Leo M. Frank, and effectively
constitutes a waiver. (5) Because the motion, in conjunction with the
decision of the Supreme Court of Georgia in the case of Leo M. Frank v.
State of Georgia, affirmatively shows that Frank, after a knowledge of
this waiver on the part of his counsel, acquiesced in the same and took
steps affirmatively indicating a waiver of such conduct on the part of
his counsel. (6) Because the motion affirmatively shows that the jury
returning the verdict were polled, and the presence of the defendant is
necessary for himself mainly in order to exercise this right to poll
the jury. (7) Because the motion and the decision of the Supreme Court
of Georgia in the case above named affirmatively discloses that the
verdict of guilty was received in open court and a poll of the jury
demanded on behalf of the defendant, and that the poll of the jury was
in conformity with every requirement of law.

Hugh M. Dorsey, Sol. Gen., and E. A. Stephens, both of Atlanta, and
Warren Grice, Atty. Gen., for the State.

HILL, J. (after stating the
facts as above).

1. Did the absence of the
defendant, under the foregoing statement of
facts, at the time that the verdict finding him guilty of murder was
received by the court and the jury trying him was discharged, render
the verdict void and of no legal effect? It is insisted by the
defendant that the reception of the verdict in his involuntary absence,
while he was confined in jail, was in violation of the due process
clauses of the state and federal Constitutions, and that it denied him
the equal protection of the laws.

“
‘Due process of law,’ as the meaning of the words has been developed in
American decisions, implies the administration of equal laws according
to established rules, not violative of the fundamental principles of
private right, by a competent tribunal having jurisdiction of the case
and proceeding upon notice and hearing. The phrase is and has long been
exactly equivalent to and convertible with the older expression ‘the
law of the land.’ The basis of due process, orderly proceedings and an
opportunity to defend, must be inherent in every body of law or custom
as soon as it advances beyond the state of uncontrolled vengence.”
McGehee on Due Process of Law, 1, citing Chicago, etc., R. Co. v.
Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979.

On page 35, this same author says:

“Before
the passage of the fourteenth amendment the security of the citizens of
the several states for due process of law in proceedings by the state
lay in its institutions alone. Even if due process was denied, the
federal government had no right to interfere. The fourteenth amendment
changed this condition of affairs. It made it a matter of national
concern that the state should not deny due process of law to its
citizens and to others. It gave to the United States the right to
supervise the performance of its duty, and transferred from the state
to the federal Supreme Court the ultimate decision on the question of
the presence of due process in all proceedings affecting life, liberty,
and property. But under the amendment the authority of the federal
court is merely to determine whether the state by some official action
has provided due process or has failed in that duty; and if a denial of
due process appears, it can only pronounce the proceedings void. The
power of the federal government ordinarily ends with that act. Thus the
primary duty of providing for the protection of life, liberty, and
property by due process of law rests still with the states, and the
fourteenth amendment operates merely as a guaranty additional to the
state Constitutions against encroachments on the part of the state upon
fundamental rights, which their governments were created to secure. It
did not radically change the whole theory of the relations of the state
and federal governments to each other and of both governments to the
people. See United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588;
In re Kemmler, 136 U. S. 436, 438, 10 Sup. Ct. 930, 34 L. Ed. 519.
The federal Supreme Court has again and again declared that, when the
highest court of a state has acted within its jurisdiction and in
accordance with its construction of the state Constitution and laws,
very exceptional circumstances will be necessary in order that the
federal Supreme Court may feel justified in saying that there has been
a failure of due process of law. ‘We might ourselves have pursued
a different course, but that is not the test. The
plaintiff in error must have been deprived of one of those fundamental
rights, the observance of which is indispensable to the liberty of the
citizen, to justify our interference. For especially in cases involving
procedure it is true that due process of law means law in its regular
course of administration through courts of justice.’ ” McGehee, Due
Process of Law, 167, citing Allen v. Georgia, 166 U. S. 138, 17 Sup.
Ct. 525, 41 L. Ed. 949, which case is cited and approved in Wilson v.
North Carolina, 169 U. S. 586, 595, 18 Sup. Ct. 435, 42 L. Ed. 865.

In Rawlins v. Georgia, 201 U. S.
638, 26 Sup. Ct. 560, 50 L. Ed. 899, 5 Ann. Cas. 783,
it was contended that, because many lawyers, preachers, doctors,
engineers, firemen, and dentists were excluded from jury service in
Georgia, by the jury commissioners failing and refusing to put any of
the names of the classes excluded in the jury box, the defendant had
rights under the fourteenth amendment. In delivering the opinion of the
court in that case, Mr. Justice Holmes said:

“At
the argument before us the not uncommon misconception seemed to prevail
that the requirement of due process of law took up the special
provisions of the state Constitution and laws into the fourteenth
amendment for the purposes of the case, so that this court would revise
the decision of the state court that the local provisions had been
complied with. This is a mistake. If the state Constitution and laws as
construed by the state court are consistent with the fourteenth
amendment, we can go no further. The only question for us is whether a
state could authorize the course of proceedings adopted, if that course
were prescribed by its Constitution in express terms.”

In the recent case of Garland v.
State of Washington, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772, it
was held that:

“A
conviction upon a second and amended information, after a prior
conviction under the original information had been set aside and a new
trial granted, was not wanting in the due process of law guaranteed by
Const. U. S. Amend. 14,
because no arraignment or plea was had upon the second information,
where, without raising that specific objection before trial, the
accused had made certain objections to such information, and was put to
a trial thereon before a jury in all respects as though he had entered
a formal plea of not guilty.”

In delivering the opinion of the
court (which was unanimous), Mr. Justice Day said in part:

“Due
process of law, this court has held, does not require the state to
adopt any particular form of procedure, so long as it appears that the
accused has had sufficient notice of the accusation and an adequate
opportunity to defend himself in the prosecution. Rogers v. Peck, 199
U. S. 425, 435, 26 Sup. Ct. 87, 90 (50 L. Ed. 256),
and previous cases in this court there cited. Tried by this test, it
cannot for a moment be maintained that the want of formal arraignment
deprived the accused of any substantial right, or in any wise changed
the course of trial to his disadvantage. All requirements of due
process of law in criminal trials in a state, as laid down in the
repeated decisions of this court, were fully met by the proceedings had
against the accused in the trial court. * * * Technical objections of
this character were undoubtedly given much more weight formerly than
they are now. Such rulings originated in that period of English history
when the accused was entitled to few rights in the prosecution of his
defense, when he could not be represented by counsel, nor heard upon
his own oath, and when the punishment of offenses, even of a trivial
character, was of a severe, and often of a shocking, nature. Under that
system the courts were disposed to require that the technical forms and
methods of procedure should be fully complied with. But with improved
methods of procedure and greater privileges to the accused, any reason
for such strict adherence to mere formalities of trial would seem to
have passed away, and we think that the better opinion, when applied to
a situation such as now confronts us, was expressed in the dissenting
opinion of Mr. Justice Peckham, speaking for the minority of the court
in the Crain Case, 162 U. S. 625, 649, 16 Sup. Ct. 952, 960 (40 L. Ed.
1097),
when he said: ‘Here the defendant could not have been injured by an
inadvertence of that nature. He ought to be held to have waived that
which, under the circumstances, would have been a wholly unimportant
formality. A waiver ought to be conclusively implied where the parties
had proceeded as if defendant had been duly arraigned and a formal plea
of not guilty had been interposed, and where there was no objection
made on account of its absence until, as in this case, the record was
brought to this court for review. It would be inconsistent with the due
administration of justice to permit a defendant under such
circumstances to lie by, say nothing as to such an objection, and then
for the first time urge it in this court.’ ”

Authorities
might be multiplied to the effect that if the state laws, as construed
by the state courts, are not inconsistent with the provisions of the
fourteenth amendment, there is no denial of due process of law within
the meaning of that provision of the federal Constitution.

Article 1, § 1, par. 4, of
the Constitution of the state of Georgia (Civil Code, § 6360),
declares that:

“No
person shall be deprived of the right to prosecute or defend his own
cause in any of the courts of this state, in person, by attorney, or
both.”

By section 6079 of the Civil Code
of 1910 it is provided that:

“The
several superior courts of this state shall have power to correct
errors and grant new trials in any cause or collateral issue depending
in any of the said courts, in such manner and under such rules and
regulations as they may establish according to law and the usages and
customs of courts.”

And see section 6080 et seq. as
to the procedure in such cases.

Provision
is made that cases tried in the superior courts may be reviewed by the
Supreme Court, which has appellate jurisdiction to hear and determine
all cases, civil and criminal, that may come before it, and to grant
judgments of affirmance or reversal etc. Civil Code, § 6103. And
how
stands the case with reference to our State Constitution and laws as
affording the defendant due process of law? Article 1, § 1, par.
3, of
the Constitution of Georgia (Civil Code, 1910, § 6359), provides
that
“no person shall be deprived of life, liberty or property, except by
due process of law.” This provision of the state Constitution is in
substantial accord with the fourteenth amendment to the
Constitution of the United States, which declares that:

“No
state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.” Civil Code, § 6700.

Thus
it will be seen that provision has been made in “the law of the land”
by which all who are charged with crime can make their defense, and in
case of conviction in the trial court they can make a motion for a new
trial in that court on account of any alleged errors which may have
been committed in the trial court. If the motion is denied by the trial
court, the accused can take the case to the Supreme Court by writ of
error, or by direct bill of exceptions, and have the case reviewed. We
think it cannot be said, therefore, in view of the ample provisions
made by the Constitution and laws of Georgia for any one accused of
crime to exercise his right of defense in our courts, that he is denied
“due process of law,” or the equal protection of the laws. See Frank v.
State, 141 Ga. 243, 80 S. E. 1016.

2. In this state a defendant
charged with crime and tried by a jury is
given the right, by motion for a new trial, to have reviewed a verdict
and judgment rendered against him, and have it set aside for an
illegality, or irregularity amounting to harmful error, in the trial,
including such grounds as the reception of a verdict in his absence;
but, where such motion is made, it should include all proper grounds
which were at the time known to the defendant or his counsel, or which
by reasonable diligence could have been discovered. Leathers v.
Leathers, 138 Ga. 740, 76 S. E. 44.
A motion in arrest of judgment is also available to the defendant in a
proper case, but a motion in arrest of judgment must be made during the
term of court at which the judgment was obtained, and must be
predicated upon some defect which appears upon the face of the record
or pleadings. Civil Code 1910, § 5958. But this court has decided
a
number of times that objections to the reception of a verdict in the
absence of the defendant, and to recharging the jury in the absence of
the prisoner, and similar alleged errors, can be made in a motion for a
new trial. In Wade v. State, 12 Ga. 25,
the defendant, a verdict for assault with intent to rape being rendered
against him, made a motion for a new trial; one of the grounds being
that the court read testimony taken down by the court to the jury in
the absence of the prisoner, and without consent of the prisoner's
counsel. It was held in that case that:

“The
court has no more authority under the law to read over testimony to the
jury, affecting the life or liberty of the defendant, in his absence,
than it had to examine the witness in relation thereto in his absence.”

A
new trial was accordingly granted. The court merely treated the ground
of the motion for a new trial as an irregularity, and not as a nullity.
In Martin v. State, 51 Ga. 567,
the defendant was indicted for simple larceny, and the court charged
the jury the second time in the absence of the defendant and his
counsel. This court did not treat the verdict of guilty as a nullity,
but said:

“As this important
privilege was lost to the defendant in this case, and at a critical
stage of the trial, through a mistake of the state's counsel, at least
it is positively so stated, by defendant's counsel, and doubtless the
court was misled by it, we think there should be a new trial.”

Bonner v. State, 67 Ga. 510,
was an indictment for murder, and there was a conviction for voluntary
manslaughter. A motion for a new trial was made, which was overruled,
and the defendant excepted. A new trial was granted by this court, it
being held that:

“In a
criminal case the prisoner has the right to be present in person
throughout the trial. Therefore for the judge to recharge the jury
while the prisoner was absent and in confinement, although his counsel
may have been present and kept silent, was error.”

In Wilson v. State, 87 Ga. 583,
13 S. E. 566,
there was indictment and trial for murder, and a motion for a new
trial. The trial court recharged the jury in the absence of the
defendant. This court held this to be cause for a new trial. And to the
same effect see Tiller v. State, 96 Ga. 430, 23 S. E. 825; Hopson v.
State, 116 Ga. 90, 42 S. E. 412.

It
will thus be seen that this court has held that a motion for a new
trial is an available remedy in a case where during progress of the
trial of one charged with a felony some step is taken by the court
during the enforced absence of the defendant, without his consent, and
in such case the verdict rendered against the defendant will not be
treated as a nullity, but it will be set aside and a new trial granted.
It will also be seen that, where a motion for a new trial is made, the
defendant must in his motion for a new trial set out all that is known
to him at the time, or by reasonable diligence could have been known by
him, as grounds for a new trial.

Did
the defendant in the instant case know at the time he made his motion
for a new trial that he was absent without his consent when the verdict
of guilty was rendered against him? He must of necessity have known it,
and likewise his counsel. In one ground of his motion for a new trial
(which was reviewed and passed on by this court in the case of Frank v.
State, supra), it was alleged:

“Defendant was not in the
courtroom when the verdict was rendered, his presence having been
waived by his counsel.”

When
one convicted of crime makes a motion for a new trial, it is his duty
to include everything in it which was appropriate to such a motion and
which was known to him at the time. As we have seen, the defendant
could have made the question under consideration*651 in the motion for a new
trial. In Daniels v. Towers, 79 Ga. 785, 7 S. E. 120,
a judgment of conviction for felony had been affirmed by the Supreme
Court on writ of error brought by the defendant, and this court held
that the legality of his conviction could not be brought into question
by writ of habeas corpus sued out by him, save for the want of
jurisdiction appearing on the face of the record as brought from the
court below to the Supreme Court. In delivering the opinion of the
court, Judge Bleckley said (79 Ga. 789, 7 S. E. 122):

“We
rest the case upon the general rule that after a judge of the superior
court has presided in any case in the superior court of any county, and
the judgment rendered at the trial has been affirmed by this court, it
is to be taken for all purposes that it was a legal trial and judgment,
and cannot be questioned for anything but the want of jurisdiction
appearing upon the face of the proceedings as ruled upon here. If there
is more record below, and the plaintiff in error, after conviction,
does not bring it up, it is his own misfortune. He had an opportunity
to bring it up. He must abide the judgment upon the record which he
brings here; and if the judgment is legal according to that record, he
must take the consequences. It will not do to allow him to bring up his
case in sections, whether there is a trial of it by a court divided in
sections or not. He must bring up his whole case as he expects to stand
upon it for all time; and if he does not do it, neither he nor his
friends can repair the error afterwards.”

In support of his contention, the
plaintiff in error cites the case of Hopt v. People of Utah, 110 U. S.
574, 4 Sup. Ct. 202, 28 L. Ed. 262.
Hopt was tried on an indictment for murder, found guilty, and sentenced
to suffer death. The judgment was affirmed by the Supreme Court of the
territory of Utah. Upon writ of error to the Supreme Court of the
United States the judgment was reversed and the case remanded, with
instructions to order a new trial. A statute of Utah provided that:

“If
the indictment is for a felony, the defendant must be personally
present at the trial; but if for a misdemeanor, the trial may be had in
the absence of the defendant.” Comp. Laws Utah 1888, § 4998.

The
triors of the competency of the jurors, appointed by the court,
conducted their examination of jurors in a different room, and tried
the grounds of challenge out of the presence as well of the court as of
the defendant and his counsel. The Supreme Court of the United States,
in construing the statute of Utah, said that under their construction
the trial, by triors appointed by the court, of challenges of proposed
jurors in felony cases, must be had as well in the presence of the
court as of the accused, and that such presence cannot be dispensed
with. But it will be observed that the decision was placed upon a
construction of the statute of Utah which required the personal
presence of the accused at every stage of the trial. It was said by Mr.
Justice Harlan, who delivered the opinion, that:

“All
doubt upon the subject is removed by the express requirement, not that
the defendant may, but, where the indictment is for a felony, must, be
‘personally present at the trial.’ ”

The
absence of the defendant, however, was treated as an irregularity, as
shown by the judgment remanding the case and ordering that a new trial
be had.

Ball v. United States, 140 U. S.
118, 11 Sup. Ct. 761, 35 L. Ed. 377,
was also relied upon. In that case it did not affirmatively appear from
the record that the defendant was present when the sentence was
pronounced upon him. It was said that:

“At
common law it was essential, in a trial for a capital offense, that the
prisoner should be present, and that it should appear of record that he
was asked before sentence whether he had anything to say why it should
not be pronounced.”

The
defendant was convicted of murder, and filed a motion for a new trial,
and to arrest the judgment, both on the same date, but whether along
with the other motion is not clear. The case was remanded, with
direction to quash the indictment, because it failed to show the time
and place of death. 140 U. S. 133, 11 Sup. Ct. 761, 35 L. Ed. 377. In
delivering the opinion of the court, Chief Justice Fuller said (140 U.
S. 132, 11 Sup. Ct. 766, 35 L. Ed. 377):

“We
do not think that the fact of the presence of the prisoners can by fair
intendment be collected from the record; no mention being made to that
effect in the order, it not appearing therefrom that the sentence was
read or orally delivered to them, and the usual questions not having
been propounded.”

The Chief Justice further said:

“We
are clear that the indictment is fatally defective, and that a capital
conviction, even if otherwise regular, could not be sustained thereon.”

While
it seems to be the practice of the federal courts, in capital felonies,
that the record should show that the defendant was present and was
asked whether he had anything to say why sentence should not be
pronounced, it has never been the practice of this state--

“to
enter on the record the fact that the prisoner and his counsel were
present when the verdict was rendered, and when the sentence was
pronounced, and from arraignment to sentence, or that the prisoner was
asked, before sentence, whether there was any reason why sentence
should not be pronounced upon him. The silence of the record as to such
facts is, therefore, no cause for arresting the judgment or setting it
aside.” Rawlins v. Mitchell, 127 Ga. 24, 55 S. E. 958.

See, also, Nolan v. State, 53 Ga.
137 (3).

Counsel for the defendant rely on
the cases of Nolan v. State, 53 Ga. 137, and Nolan v. State, 55 Ga.
521, 21 Am. Rep. 284.
In the former case the defendant was indicted for the offense of
murder, and the jury found him guilty of voluntary manslaughter. When
the jury were out, and before the verdict was returned, counsel for the
accused consented that, if the jury agreed on a verdict that night,
they could return a sealed verdict to the clerk of the court and
disperse. They did not agree that night, but did
on the following day, and their verdict was received in the absence of
the prisoner and his counsel. The defendant made a motion in arrest of
judgment, on the ground that the consent extended only in case of
agreement that night, and not to the next day. It was held that consent
of counsel that, should the jury agree that night, they might return a
sealed verdict to the clerk and disperse, cannot be construed to extend
to a verdict found on the next day. “It was the legal right of the
defendant to be present when the verdict was rendered, and, had a
motion to set aside such verdict been made on the ground of his
absence, it should have been granted.” By the motion in arrest of
judgment the defendant sought to arrest the judgment as a nullity. But
the court said that no motion under section 4629 of the Code then in
force could be sustained for any matter not affecting the real merits
of the offense charged in the indictment. The judgment of the court
below, overruling the motion in arrest of judgment, was therefore
affirmed. The court also said:

“That
it was the legal right of the defendant to have been present when the
verdict was rendered by the jury we entertain no doubt, and if a motion
had been made to set aside the verdict on the ground of his absence
that motion should have been granted by the court.”

This
last statement, from an examination of the record, is obiter. But what
was probably meant by a motion to set aside was in the sense of being a
motion for a new trial, as such motions have been likened to motions in
arrest and to set aside. See Prescott v. Bennett, 50 Ga. 266, 272,
where Judge Trippe said:

“It
is true that a motion entitled a motion to set aside is sometimes made
for matters extrinsic the pleadings or record. In such cases they are
practically more to be likened unto motions for new trials, and
substantially are the same in form and effect.”

This
is probably what Judge Warner meant by the obiter expression quoted
above from the Nolan Case; for, from the cases cited in which opinions
were delivered prior to that utterance, it will be seen that a motion
for a new trial was an available remedy in such cases, and it will be
noted, too, that Judge Warner presided and delivered the opinion of the
court in the Prescott Case, in which Judge Trippe used the language
quoted above in his concurring opinion.

In the Nolan Case, decided in 55
Ga. 521, 21 Am. Rep. 281,
Nolan was placed on trial for the offense of murder. Evidence was
submitted to the jury, argument had, and a charge delivered by the
court. Subsequently, while the defendant was confined in jail, in the
absence of his counsel, and without his consent, the jury returned a
verdict finding him guilty of voluntary manslaughter, and were
discharged. The defendant at a subsequent term moved to set aside the
verdict rendered against him on the ground that it was rendered and
published in his absence and without his right of being present having
been waived. The trial court ordered accordingly. Subsequently the
defendant was arraigned again upon the same indictment, and he pleaded
specially in bar facts as constituting his having been placed once in
jeopardy, and claimed his discharge. This court held that:

“A
verdict so received having been, on his motion, set aside as illegal,
when afterwards arraigned for trial on the same indictment for the
offense before another jury, the prisoner may plead specially his
former jeopardy in bar of a second trial, and, if supported by the
record and the extrinsic facts, the plea should be sustained, and
thereupon the prisoner should be discharged.”

It
will be seen that the defendant in the Nolan Case treated the verdict
as a nullity and made a motion to set it aside as such, which was done,
instead of making a motion for a new trial, and setting up his defense
as an irregularity, and seeking a new trial because of some error
committed at the trial. In the latter case he would waive the fact that
the verdict was a nullity, but insist that it was merely irregular and
erroneous, requiring a new trial. Judge Bleckley, delivering the
opinion in the last Nolan Case, said:

“One
trial, and only one, for each crime, is a fundamental principle in
criminal procedure, and must be the general rule practically
administered in all free countries. For the public authority, whether
king or commonwealth, to try the same person over and over again for
the same offense, would be rank tyranny. * * * Though some exceptions
to the general rule are to be admitted, as when a new trial is had on
the prisoner's motion, or when judgment upon a void indictment has been
arrested, the transcendent importance of the rule itself requires that
the exceptions should be few and strictly guarded.”

In
the instant case, the defendant made a motion for a new trial, which
was overruled by the court (paragraphs 6 and 7 of defendant's motion;
also Frank v. State, supra), thus treating the verdict, not as a
nullity, but as an irregularity. In Smith v. State, 59 Ga. 513, 27 Am.
Rep. 393,
it was held that, although the prisoner be in custody, he may consent
that the verdict shall be received in his absence, and that a verdict
thus received was valid, notwithstanding he was at the time confined in
jail. The facts in this case were somewhat similar to the Nolan Case as
to the agreement. The court said:

“He
ought to have been brought from the jail, so as to be present at the
reception. But we think it was merely an irregularity, and that no
matter of substance was involved. Having surrendered his right to poll
the jury, no other of any value to him remained, for the exercise * * *
of which his presence was important. Had he been in court, the result
must have been the same as it was. Nothing took place in his absence
but the mechanical act of receiving the verdict, as the consent had
provided it should be received. If he had been present, the act would
have been no less mechanical. In Nolan's Case, 53 Ga. 137, 55 Ga. 521
[21 Am. Rep. 281], the event contemplated did not happen.”

We conclude from these
authorities that the question here raised could have been adjudicated*653 under a
motion for a new trial, and that a failure to include this
ground in such motion would preclude the defendant, after the denial of
the motion, and the affirmance of the judgment by this court, from
seeking to set aside the verdict as a nullity.

3. The motion to set aside the
verdict complains of the reception of
the verdict in the involuntary absence of the defendant, while he was
incarcerated in jail, and in the absence of his counsel. Paragraph 2 of
the motion avers that he did not waive that right, nor did he authorize
any one to waive it for him, nor did he consent that he should not be
present; that he did not know that the verdict had been rendered and
the jury discharged until after the reception of the verdict and the
discharge of the jury; and that he did not know of any waiver of his
presence made by his counsel until after sentence of death had been
pronounced upon him. Paragraph 3 of the motion alleges that on the day
the verdict was rendered, and shortly before the judge who presided on
the trial of the case began his charge to the jury, the judge privately
conversed with two of the counsel for the defendant, and in the
conversation referred to the probable danger of violence to the
defendant and his counsel, if he or they were present when the verdict
was rendered and it should be one of acquittal, and after the judge had
thus expressed himself he requested counsel to agree that the defendant
should not be present at the time the verdict was rendered and the jury
polled; that under these circumstances counsel did agree with the judge
that the defendant should not be present at the rendition of the
verdict, and he was not present at the rendition of the verdict, nor
were his counsel present. It is contended that it is the constitutional
right of the defendant to be present at every stage of the trial, and
that he cannot waive that right, nor can his counsel waive it for him,
and that his absence at the reception of the verdict vitiates the whole
trial.

It is the undoubted
right of a defendant who is indicted for a criminal offense in this
state to be present at every stage of his trial. But he may waive his
presence at the reception of the verdict rendered in his case. In
Cawthon v. State, 119 Ga. 395, 46 S. E. 897,
a waiver was made by the defendant's counsel in his presence as to his
personal presence at the reception of the verdict. This court held in
that case:

“8. Even if an
attorney, by virtue of the relation of attorney and client existing
between himself and one charged with a felony, has no implied authority
to waive the right of his client to be present at the reception of the
verdict, if the attorney makes an express waiver to this effect in the
presence of the client, who does not at the time repudiate the action
of his counsel, a verdict afterwards received in the absence of the
accused and in consequence of the waiver will not be held to be invalid
at the instance of the accused, seeking, after the reception of the
verdict, to repudiate the action of his counsel in making the waiver.”

“9.
Before a verdict received in the absence of the accused will be held to
be invalid, it is incumbent upon the accused to show that he was in the
custody of the law at the time the waiver was made, that he made no
waiver of his right to be present, and that he did not authorize his
counsel to make such waiver for him, and, if an authorized waiver has
been made by counsel, that he has not ratified the same or allowed the
court to act upon the waiver of counsel after he has notice that the
same has been made.”

Judge Cobb, who delivered the
opinion of the court in the Cawthon Case, after citing a number of
authorities pro and con, said (119 Ga. 413, 46 S. E. 903):

“These
decisions seem to draw no distinction between a waiver made by counsel
in the presence of his client and one made in his absence. While
counsel may have no implied authority, growing out of the relation of
attorney and client, to make a waiver of this character for his client
in his absence, we can see no good reason why the accused would not be
bound by an express waiver made in his presence. Such a waiver is to
all intents and purposes the waiver of a client. It would be trifling
with the court to allow it to act upon a waiver thus made, and then
impeach its action on the ground that counsel had been guilty of an
unauthorized act. And while we recognize fully that there are
limitations upon the authority of counsel, the client, even though he
be charged with a capital felony, should not be allowed to impeach the
authority of his counsel, when he acts in his presence, unless he
promptly repudiates the unauthorized act before the court bases action
upon it. Speaking for myself, I am inclined to the opinion that the
right to make the waiver resides in the counsel, whether the accused be
present or not at the time of the waiver; his authority arising from
the mere relation of attorney and client. The reasoning of the courts
that hold to the contrary is not, in my opinion, satisfactory or by any
means conclusive. Counsel is generally much better able to take care of
the rights of the accused than he is himself, and the accused is better
protected from improvident waivers by his case being left to the
control of his counsel than if he were to take charge of the same in
his own behalf.”

As said by this court in effect
in the case of Lampkin v. State, 87 Ga. 517, 13 S. E. 523,
it is not sound practice for counsel to make a waiver of their client's
presence at the reception of the verdict, take the chances of acquittal
for their client, and then, after verdict of guilty, the defendant
should be allowed to repudiate the action of counsel to set aside the
verdict because of the absence of the defendant at the time it was
rendered. Who was better prepared to protect the interests of the
defendant, trained and expert counsel, or the defendant himself? True,
he had the right to conduct the trial in person, if he so desired; but
the defendant had committed his case to able and experienced counsel,
who in the exercise of their relation as attorney to the client waived
his right to be present, and having made the waiver, and defendant by
his conduct having acquiesced to it, he should be bound by it.

In
the instant case the defendant, in his motion to set aside the verdict
as a nullity, says that he did not know of the waiver of his presence
made by his counsel. After the verdict of guilty was rendered against
him in the trial court, the defendant made a motion
for a new trial on various grounds, and, the motion being overruled, a
writ of error was sued out to this court, and the judgment of the lower
court affirmed. See Frank v. State, supra. The seventy-fifth ground of
that motion contains the following recital, among others:

“The defendant was not in the
courtroom when the verdict was rendered, his presence having been
waived by his counsel.”

“The
said judge, Hon. L. S. Roan, upon considering the motion for new trial
made by this defendant, after the reception of said verdict as above
stated, rendered his judgment denying said motion, and in rendering
said judgment stated that the jury had found the defendant guilty,” etc.

When,
therefore, the defendant by motion for a new trial invoked from the
court a ruling upon alleged errors that had been committed upon the
trial (reciting on the face of the motion a knowledge of his absence
when the verdict was returned, and the waiver of his presence), he will
not now be heard to say that the verdict was a nullity on account of
his not being present at its rendition, after the motion for a new
trial has been denied, and the judgment denying it affirmed by this
court. Frank v. State, supra. And, moreover, an extraordinary motion
for a new trial was made, and has likewise been refused, and the
judgment overruling it affirmed by this court. Frank v. State, 142 Ga.
617, 83 S. E. 233.
He had the right to invoke a ruling on that question in the motion for
a new trial, and, failing to do so, he cannot now be heard to say that
he will treat the verdict as a nullity and move to have it set aside as
such. It would be a reproach upon the court's administration of the law
to allow a defendant to make a motion for a new trial, with a knowledge
of his absence when the verdict against him was rendered, and have the
grounds of the motion adjudicated by the court, and then move to set
the verdict aside as void. The defendant necessarily knew, when
sentenced by the court, for he was then present, that the verdict had
been rendered against him. His counsel must have known it, for they
filed his motion for a new trial. He and they are presumed to know the
law. His motion for a new trial recited that his presence at the
reception of the verdict had been waived by his counsel. Under these
circumstances it must be held that the defendant acquiesced in the
waiver of his counsel of his presence at the reception of the verdict.
It would be trifling with the court to allow one who had been convicted
of crime, and who had made a motion for a new trial on over 100
grounds, including the statement that his counsel had waived his
presence at the reception of the verdict, and have the motion heard by
both the superior and the Supreme Courts, and after a denial by both
courts of the motion, to now come in and by way of a motion to set
aside the verdict include matters which were or ought to have been
included in the motion for a new trial.

While
a defendant indicted for crime in this state has the legal right to be
personally present at every stage of his trial, as before stated, there
are certain matters which he may waive, and which many prisoners do
waive, at their trial. They may waive copy of indictment, formal
arraignment, and list of witnesses before the grand jury, all of which
are important rights. They may waive a preliminary hearing before a
committal court, a jury of 12 to try them, or any legal objection to
jurors who have qualified on their voir dire; they may even waive trial
entirely, plead guilty of murder, and be sentenced to hang. Sarah v.
State, 28 Ga. 576 (2), 581; Wiggins v. Tyson, 112 Ga. 745, 750, 38 S.
E. 86.
These are rights personal to the defendant, and it would be absurd to
say that when his counsel had waived his presence at the reception of
the verdict, and this waiver had been brought to his attention in ample
time for him to move for a new trial on that ground, which he fails to
do until after he makes a motion for a new trial, with knowledge of the
fact of absence when the verdict was rendered, and then, after the
motion had been finally adjudicated against him, he could then move to
set aside the verdict as a nullity. We may add that the allegations of
the petition show that at the rendition of the verdict the jury was
polled by the court, under an agreement had with defendant's counsel
when the waiver was made.

In
this state, after a verdict of guilty of murder and the overruling of a
motion for a new trial, a writ of error will lie to this court,
assigning error on the overruling of the motion. In some jurisdictions
the practice is different. But on examination of the cases in other
jurisdictions in which a complaint of the reception of a verdict in the
absence of the accused was made and sustained, it *655 will
be found that very commonly this was treated as a ground for remanding
the case for another trial. We know of no provision in the Constitution
of the United States, or of this state, nor of any statute, which gives
to an accused person a right to disregard the rules of procedure in a
state, which afford him due process of law, and demand that he shall
move in his own way and be granted absolute freedom because of an
irregularity (if there is one) in receiving the verdict. If an accused
person could make some of his points of attack on the verdict, and
reserve other points known to him, which he could then have made, to be
used as grounds for further attacks on the verdict, there would be
practically no end to a criminal case.

4. Comparing the grounds of the
motion to set aside the verdict in this
case on the ground of disorder in the courtroom during the progress of
the trial, of cheering and applause outside the courtroom, and of the
oral remarks of the trial judge before signing the order denying a new
trial, with the grounds of the motion for a new trial made in the
former record in this case (see Strickland v. W. & A. R. Co., 119
Ga. 70, 45 S. E. 721), when it was here under review upon the denial of
that motion (Frank v. State, 141 Ga. 243, 80 S. E. 1016),
it will be seen that the questions there made as to these matters were
substantially the same as those sought to be raised by the present
motion, and the questions there raised were adjudicated by this court
in that case adversely to the contentions of the defendant. This court,
therefore, will not again consider those same questions when sought to
be raised by the motion to set aside the verdict now under review.